Utah: feds must relinquish landsWritten by Christy Martinez
Utah is the first state to pass a package of bills demanding the federal government relinquish its claims to federal land.
In an article from the Associated Press, Rep. Ken Ivory, who is leading the effort in Utah and helped draft model legislation for use in other states, said the federal government doesn’t treat states like equal partners in land management.
“If sovereignty means anything, it means not having to say pretty please, or mother may I,” said Ivory.
According to Utah Cattlemen’s Association Executive Vice President Brent Tanner, the legislation is good for agriculture in his state, but he has concerns about the “bumps in the road” before they get to the end.
“We recognize the state will now take on the federal government,” says Tanner. “This package of bills paved the way, and gave authorization for the state to take on the battle.”
Target: undesignated lands
Tanner explains the legislation takes aim at undesignated BLM lands, and recognizes state parks, wilderness areas, forest service land and any other federal lands that have some type of designation.
“This goes after those parcels of BLM land that have gone undesignated, but the BLM still holds them,” he says. “In the state Enabling Act, those lands were to be turned back to the state, as happened in North Dakota and Hawaii, and those are the two case laws the legislators are using.”
“Those states have already been through this process, so why are they given different treatment than Utah and Wyoming?” he asks. “The state is finally standing up to say it’s time, and we want those parcels of land to come back.”
Tanner says that, at the outset, some of Utah’s urban legislators didn’t understand why the state wouldn’t simply sell the lands after acquiring them.
“They didn’t understand the value of the industries such as grazing and mining, and we had to go through education with them, telling them that if you take grazing and mining out of small towns, it won’t be ranchers, but Ted Turners who buy the land,” says Tanner.
Ultimately, the Utah Legislature agreed that they wanted control of those lands, so the state would have the ability to enable mining industries, which Tanner says the federal government is over-regulating.
“As it changes over, there are risks,” notes Tanner. “The bigger concern, to me, is in the interim. From the day we slap the hornet’s nest of the federal government, are we willing to deal with what may become federal consequences?”
He adds that the Utah Attorney General and the legislators expect a long, drawn-out court battle.
“They’re willing to fight the long-term battle, but the problem with a court battle is that a judge could put a stay on grazing, even for a year, and put all the grazers out of business,” he explains.
Tanner notes that the Legislature did specify the state was taking back all undesignated lands, so the federal government can’t step in and say all the lands are special use.
“They did that to avoid an administrative order that could lock up the entire state,” says Tanner. “We don’t know what kind of court case we’ll get into, or what kind of a stay, and the challenge as this drags on will be whether or not the Department of Interior will continue to renew permits because of the litigation.”
“If we could leap from today to having state control, it could be a good thing, but the journey could be very difficult,” states Tanner.
Strength in numbers
Utah legislators have approached other states to join them in their request.
“They realize there will be more power with multiple states waging the battle,” comments Tanner.
In early March the Arizona Legislature had approved similar legislation, saying the federal government was killing industries like mining and timber in their state, and that the state could collect more property taxes if some of the now-federal land was sold. The measure passed the Arizona Senate by a vote of 19 to 9.
For Wyoming, Wyoming Stock Growers Association Executive Vice President Jim Magagna says that, philosophically, he agrees with what Utah and Arizona are doing, but he says his concern would be the bills’ legal strength at the federal level.
“Having said that, if a lot of Western states passed something, and collectively sent a clear message to Congress, that might open the door to a debate about the future of these lands, and it could have a favorable outcome,” he says.
Cheyenne attorney Harriet Hageman says she loves the idea of states taking control, because it would get closer to the people and management on the local level, versus the federal level and a one-size-fits-all approach.
“The idea is wonderful, but I don’t know that they have the legal ability,” she cautions, and adds that she hasn’t analyzed the Utah legislation. “We need to start having a dialogue with the federal government as to divesting real property.”
Magagna adds that a small step was taken in the 2012 Budget Session, when a bill passed and was signed by the Governor that directs any money from the sale of state lands to the federal government will be set aside to acquire land from the federal government.
“Given the federal budget picture, if states were able to come forward with dollars, they might make it more attractive to sell land at the federal level,” he explains.
Regarding the state land within Teton National Park, Magagna says he pushed hard for a trade instead of a sale when the Wyoming Legislature was debating the topic, but that he got “nowhere.” He does note that doing a trade with the federal government is so “incredibly complex” that the state could go on for years and never get it done, especially on a large scale.
“For the value of the lands in Teton County, we could have acquired surface rights to over half a million acres of federal BLM lands,” he notes. “I thought we were fools not to do it, but to make it happen was a challenge. It might be easier to turn around and identify the lands the state wants to acquire, and acquire them outright by paying for them.”
Magagna says that, short of Congressional action, such sales of federal land typically happen through land use planning processes, when requests can be made that the agency identify lands for disposal, which then have to go through the National Environmental Policy Act (NEPA) process.